PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT E. JONES,

Plaintiff-Appellant,

v.

AMERICAN POSTAL WORKERS UNION,

NATIONAL; AMERICAN POSTAL

WORKERS UNION, LOCAL NUMBER

4755,

No. 97-2584

Defendants-Appellees,

and

PATRICIA FERN BUTTS,

Defendant.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

W. Craig Broadwater, District Judge.

(CA-96-22-3)

Argued: June 8, 1999

Decided: September 10, 1999

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Hamilton wrote

the opinion, in which Judge Ervin and Judge Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: Robert E. Jones, Appellant Pro Se. Robert John Gregory,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. Susan Lynne Catler, O'DONNELL,

SCHWARTZ & ANDERSON, P.C., Washington, D.C., for Appellee.

ON BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover,

Associate General Counsel, Lorraine C. Davis, Assistant General

Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. Peter J. Leff,

O'DONNELL, SCHWARTZ & ANDERSON, P.C., Washington,

D.C., for Appellees.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

The principal issue in this appeal is whether a labor union that represents federal employees may constitute a labor organization as that

term is defined in the Americans With Disabilities Act (ADA), 42

U.S.C. §§ 12101 - 12213, and therefore be subject to suit in federal

district court for violations of 42 U.S.C. § 12112(a). Because the

ADA provides that the term "labor organization" shall have the same

meaning given that term in Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e to 2000e-17, a sister statute, resolution of the

principal issue requires us to resolve the antecedent question of

whether a labor union that represents federal employees may constitute a labor organization as that term is defined in Title VII. For the

reasons that follow, we hold a labor union that represents federal

employees may constitute a labor organization as that term is defined

in Title VII and by proxy the ADA.

I.

At approximately 11:45 a.m. on June 20, 1994, the Postmaster of

the United States Post Office in Martinsburg, West Virginia (the Post

Office), Sebastian Giargiano (Postmaster Giargiano), determined that

United States Postal Service (the Postal Service) employee Robert

 2
Jones (Jones) was acting strangely on the job and was in need of medical treatment. The Postal Service employed Jones as a claims/inquiry

clerk. Postmaster Giargiano decided to transport Jones via automobile

to the Medical Center for the Department of Veteran's Affairs (the

Medical Center) in Martinsburg. Just prior to leaving the Post Office,

Jones handed Postmaster Giargiano an envelope and said this letter is

for you. Believing the envelope contained ordinary mail, Postmaster

Giargiano tossed it on his desk for reading upon his return.

On the way to the Medical Center, Jones told Postmaster Giargiano

that he intended to kill his supervisor, Kim Mickelinc (Mickelinc),

that day. He also told Postmaster Giargiano that the system was winning, he could not handle it any more, and that things would be better

if Mickelinc was dead. Upon arrival at the Medical Center, Jones was

admitted as a psychiatric patient under the care of Dr. Kodali.

Upon returning to the Post Office after transporting Jones to the

Medical Center, Postmaster Giargiano opened the envelope Jones had

given him and read Jones's handwritten letter inside. The letter

appeared to Postmaster Giargiano to be a suicide note. Postmaster

Giargiano notified, among others, the Manager of Human Resources

in the Appalachian District for the Postal Service, James Cox, and

Postal Inspector Steve Randolph (Inspector Randolph) about the letter

and about hearing Jones verbally threaten the life of Mickelinc.

During the next few weeks, the Postal Service investigated the matter. As part of the investigation, Inspector Randolph submitted a

report dated July 19, 1994 to Dennis Moles, the Acting Manager of

Post Office Operations in Charleston, West Virginia. The report

stated that Patricia Butts (Butts), the Secretary-Treasurer of the Eastern Panhandle Local Number 4755, American Postal Workers Union

(the Local),1 informed him (Inspector Randolph) that at a union meet-

_________________________________________________________________

1 The Local is chartered by the American Postal Workers Union, AFLCIO (the APWU). The APWU is an unincorporated labor organization

with its headquarters in Washington, D.C. At all times relevant to this

appeal, the APWU was recognized by the Postal Service as the exclusive

collective bargaining representative of postal employees in the clerk,

maintenance, and motor vehicle service crafts nationwide pursuant to 39

U.S.C. § 1203. The Local is an autonomous unincorporated labor organization with its own bylaws and officers.

 3
ing approximately one week after Jones threatened to kill Mickelinc,

those present unanimously expressed objections to Jones returning to

work. The report also states that Butts informed him that Jones's fellow employees would feel very worried and apprehensive if Jones

returned to work. Butts repeated the same information a short time

later to Postmaster Giargiano.

Dr. Kodali discharged Jones from the Medical Center on July 13,

1994 with a discharge diagnosis of schizophreniform disorder and

post traumatic stress syndrome.2 Dr. Kodali's discharge instructions

recommended Jones spend one month convalescing. Postmaster Giargiano thereafter authorized advance sick leave for Jones through

August 9, 1994. On a form provided by the Postal Service and dated

August 3, 1994, Dr. Asghar, Jones's treating physician at the Medical

Center for two years, stated that Jones's prognosis was "[f]air to

good," and that Jones could return to work without restriction on

August 13, 1994. Dr. Asghar did state on the form, however, that consideration should be given to reducing the amount of time Jones spent

with the public.

On August 8, 1994, Postmaster Giargiano advised Jones by written

memorandum that effective August 13, 1994 he would be in off-duty

status, without pay, until the Postal Service advised him otherwise.

The memorandum informed Jones that the Postal Service took this

action because his "retention in a duty status may be injurious to

[him]self or others." (J.A. 126). The memorandum then described

Jones's death threat against Mickelinc in detail.

On September 6, 1994, Postmaster Giargiano gave Jones written

notice of his proposed discharge from the Postal Service no sooner

than thirty days from Jones's receipt of the notice. The notice cited

Jones's improper conduct with respect to his death threat against

Mickelinc and his suicide letter. The notice also stated that a letter of

warning dated April 18, 1994, for improper conduct, would be con-

_________________________________________________________________

2 Notably, in response to a letter dated July 5, 1994, by Postmaster

Giargiano to Dr. Kodali asking whether Jones was a possible danger to

other employees, Dr. Kodali stated: "He is not dangerous to himself or

others at this time. However, he is afraid of losing control if he returned

to his office or home." (J.A. 136).

 4
sidered in deciding whether Jones's proposed discharge should be

sustained by senior Postal Service officials.3 Senior Postal Service

officials sustained the decision to discharge Jones, and Jones was officially discharged on November 7, 1994.

The Local grieved Jones's discharge through the grievance procedures of the applicable collective bargaining agreement and won a

reversal of his discharge in arbitration. The arbitration award of July

18, 1995, set aside Jones's discharge and converted it to a three-year

medical leave of absence, thus allowing Jones to return to duty when

he passes a fitness-for-duty examination and is no longer collecting

workers' compensation benefits for his mental condition.

On April 3, 1996, Jones filed this action against the APWU in the

United States District Court for the Northern District of West Virginia, and on April 19, 1996, he amended his complaint to add the

Local as a defendant.4 Jones's complaint alleged that Butts's negative

comments about him to Inspector Randolph and Postmaster Giargiano

were made in her capacity as Secretary-Treasurer of the Local and

were a substantial factor in his discharge. According to Jones's complaint, Butts's comments amounted to intentional discrimination by

APWU and the Local (the Defendants) against an individual with a

disability in violation of the ADA.

On October 16, 1996, the Defendants filed a motion to dismiss the

action for lack of subject matter jurisdiction, see Fed. R. Civ. P.

12(b)(1), and alternatively for summary judgment, see Fed. R. Civ. P.

56(c). In support of their motion to dismiss for lack of subject matter

jurisdiction, the Defendants argued that the district court lacked subject matter jurisdiction, because (1) they were not"labor organizations" as that term is defined in the ADA, and therefore not subject

_________________________________________________________________

3 The joint appendix on appeal does not disclose the contents or specific nature of this letter.

4 He also amended his complaint to add Butts as a defendant but the

district court subsequently dismissed her as a party. Jones has not

appealed that dismissal, and therefore, Butts is not a party to this appeal.

From hereafter we will refer to the APWU and the Local collectively

as the Defendants.

 5
to suit as covered entities under the ADA, and (2) the Rehabilitation

Act of 1973, 29 U.S.C. §§ 701-796l, which does not subject them to

suit, provided Jones the only means of remedying the allegations in

his complaint. On April 7, 1997, Jones filed a motion for summary

judgment.

On April 25, 1997, the district court denied the opposing motions

and discovery proceeded. On September 12, 1997, the Defendants

renewed their motion for summary judgment, but also reiterated their

arguments asserting lack of subject matter jurisdiction. In an opinion

dated November 12, 1997, the district court: (1) held that it lacked

subject matter jurisdiction over Jones's complaint for the two reasons

argued by the Defendants; (2) granted the Defendants' motion for

summary judgment on that basis; and (3) dismissed the case from its

docket. Jones noted a timely appeal, in which the Equal Employment

Opportunity Commission (the EEOC) has filed an amicus brief.

II.

In this appeal, Jones challenges the district court's determination

that it lacked subject matter jurisdiction over his ADA claims against

the Defendants. Jones has the burden of proving the existence of subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166 F.3d 642,

647 (4th Cir. 1999). The existence of subject matter jurisdiction is a

threshold issue, which this court must address before addressing the

merits of Jones's ADA claim. See Steel Co. v. Citizens for a Better

Env't, 118 U.S. 1003, 1012-13 (1998) (reaffirming holding that a federal court may not hypothesize subject matter jurisdiction for the purpose of deciding a case on the merits). We review a district court's

determination that it lacked subject matter jurisdiction de novo. See

Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994).

Below, the district court held that it lacked subject matter jurisdiction upon two alternative grounds. First, the district court held that

labor organizations that represent federal employees may not constitute covered entities under the ADA, and therefore are not subject to

suit in federal district court for violations of 42 U.S.C. § 12112(a).

Second, the district court held that the Rehabilitation Act of 1973,

which does not subject the Defendants to suit, provides the exclusive

means by which an employee of the Postal Service may seek redress

 6
for employment related disability discrimination. We address each of

these grounds in turn.

A. Are Labor Organizations That Represent Federal Employees

Covered Entities Under the ADA?

Under the ADA "[n]o covered entity shall discriminate against a

qualified individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation,

job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (emphasis added). The ADA defines the

term "covered entity" as "an employer, employment agency, labor

organization, or joint labor-management committee." Id. § 12111(2).

A district court lacks subject matter jurisdiction over an ADA claim

lodged against a defendant that is neither an employer, employment

agency, labor organization, nor a joint labor-management committee

as those terms are defined in the ADA. See Woodward v. Virginia Bd.

of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979) (affirming

dismissal of Title VII claim for lack of subject matter jurisdiction

because defendant was neither an "employer," an "employment

agency," nor a "labor organization" as those terms are defined in Title

VII). See also Scarfo v. Ginsberg, 175 F.3d 957, 961 (11th Cir. 1999)

(holding that whether defendants constituted "an`employer'" within

Title VII is a question of subject matter jurisdiction); Armbruster v.

Quinn, 711 F.2d 1332, 1335 (6th Cir. 1983) (same). But see Sharpe

v. Jefferson Distributing Co., 148 F.3d 676, 677-78 (7th Cir. 1998)

(holding that question of whether employer has more than fifteen

employees so as to be subject to Title VII is not jurisdictional, but

merits related), abrogated on other grounds by Papa v. Katy Industries, Inc., 166 F.3d 937, 939-40 (7th Cir. 1999); EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 623-24 (D.C. Cir. 1997) (holding that question of whether defendant was a covered entity under

ADA is not jurisdictional, but merits related). According to Jones, the

Defendants constitute labor organizations as the term labor organization is defined in the ADA. Thus, this appeal presents the question of

whether a labor organization that represents federal employees may

constitute a covered entity under the ADA.

To answer this question, we must first examine the relevant statutory language chosen by Congress to express its intentions. See

 7
Holloway v. United States, 119 S. Ct. 966, 969 (1999). If the intent

of Congress is clear, then our analysis proceeds no further, for we

"must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 843 (1984). In the event the statutory provision

or provisions at issue are ambiguous, "the question then becomes one

of whether the interpretation by the agency charged with its administration is a permissible one." See Adams v. Dole, 927 F.2d 771, 774

(4th Cir. 1991).

As previously stated, Congress defined the term"covered entity"

in the ADA as "an employer, employment agency, labor

organization, or joint labor-management committee," 42 U.S.C.

§ 12111(2) (emphasis added), and expressly incorporated Title VII's

definition of "labor organization," see id. § 12111(7). For its part,

Title VII defines "labor organization" as:

a labor organization engaged in an industry affecting

commerce, and any agent of such an organization, and

includes any organization of any kind, any agency, or

employee representation committee, group, association, or

plan so engaged in which employees participate and which

exists for the purpose, in whole or in part, of dealing with

employers concerning grievances, labor disputes, wages,

rates of pay, hours, or other terms or conditions of

employment, and any conference, general committee, joint

or system board, or joint council so engaged which is subordinate to a national or international labor organization.

Id. § 2000e(d) (emphasis added). Title VII goes on to state in a separate subsection of its definitional section that a labor organization

"shall be deemed to be engaged in an industry affecting commerce,"

if it maintains a hiring office or has fifteen or more members and falls

within one of the following five categories:

(1) is the certified representative of employees under the

provisions of the National Labor Relations Act . . ., or

the Railway Labor Act . . .;

(2) although not certified, is a national or international

labor organization or a local labor organization recog-

 8
nized or acting as the representative of employees of

an employer or employers engaged in an industry

affecting commerce; or

(3) has chartered a local labor organization or subsidiary

body which is representing or actively seeking to represent employees of employers within the meaning of

paragraph (1) or (2); or

(4) has been chartered by a labor organization representing

or actively seeking to represent employees within the

meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy

membership or become affiliated with such labor organization; or

(5) is a conference, general committee, joint or system

board, or joint council subordinate to a national or

international labor organization, which includes a labor

organization in an industry affecting commerce within

the meaning of any of the preceding paragraphs of this

subsection.

Id. § 2000e(e) (emphasis added).

The ADA also expressly adopts Title VII's definitions of "commerce" and "industry affecting commerce." See id. § 12111(7). Title

VII defines the term "commerce" as "trade, traffic, commerce, transportation, transmission, or communication among the several States;

or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between

points in the same State but through a point outside thereof." Id.

§ 2000e(g). Title VII defines an "industry affecting commerce" as

"any activity, business, or industry in commerce or in which a labor

dispute would hinder or obstruct commerce or the free flow of commerce and includes . . . any governmental industry, business, or activity." Id. § 2000e(h). The ADA also defines "employee" and

"employer" in language that closely approximates the definitions of

those terms in Title VII. Compare 42 U.S.C.§ 12111(4)-(5) (ADA),

with 42 U.S.C. § 2000e(b), (f) (Title VII). Notably, both the ADA and

 9
Title VII's definition of employer expressly exclude the United States

or a corporation wholly owned by the government of the United

States. See id. §§ 2000e(b) & 12111(5).

According to the Defendants, when read in concert, the language

of 42 U.S.C. §§ 2000e(b) and 2000e(e) makes plain that a labor organization that represents federal employees is excluded from Title

VII's definition of the term "labor organization." Subsection

2000e(e), which automatically deems labor organizations to be

engaged in an industry affecting commerce under certain conditions,

contains references to labor organizations representing "employees of

an employer" and "employees of employers." Id. (emphasis added).

Similarly, subsection 2000e(d) provides that the term "labor organization . . . includes any organization . . . in which employees participate

and which exists for the purpose, in whole or in part, of dealing with

employers concerning grievances, labor disputes, wages, rates of pay,

hours, or other terms or conditions of employment . . . ." 42 U.S.C.

§ 2000e(d) (emphasis added). Because federal employers are

excluded from Title VII's definition of the term"employer," see id.

§ 2000e(b)--even though covered under the separate provisions of 42

U.S.C. § 2000e-16--labor organizations that represent federal

employees, the Defendants reason, are exempt from Title VII's prohibitions, and by proxy, those of the ADA. This is the analysis relied

upon by the district court in concluding that the Defendants were not

covered entities under the ADA.

Jones and the EEOC as amicus counter that nothing in § 2000e(e)

suggests, let alone makes plain, that it serves as the exclusive means

of establishing that a particular labor organization is engaged in an

industry affecting commerce. They prefer to characterize § 2000e(e)

as merely a descriptive list of certain conditions which, if met, automatically equate to a labor organization engaging in an industry

affecting commerce. Jones and the EEOC argue that the language of

§ 2000e(d) broadly covers labor organizations of all kinds. Therefore,

at a minimum, if a labor organization that represents federal employees exists for the purpose, in whole or in part, of dealing with the

United States or an agency thereof concerning grievances, labor disputes, and the like, and is engaged in an "industry affecting commerce" as that term is defined in § 2000e(h), then that labor

organization is subject to the proscriptions of Title VII and by proxy

 10
the ADA. Jones and the EEOC point out that an interpretation subjecting labor organizations that represent federal employees to Title

VII and ADA liability fully comports with Congress' primary purpose

in enacting these statutes of eradicating targeted employment discrimination. Furthermore, Jones and the EEOC point out that the opposite

interpretation would lead to the anomalous result, surely not intended

by Congress, of nonfederal employees being allowed to sue their

employers and labor organizations for violations of Title VII and the

ADA, but federal employees only being allowed to sue their

employer.

In support of their interpretation, Jones and the EEOC rely upon

the Eighth Circuit's decision in Jennings v. American Postal Workers

Union, Local 8, 672 F.2d 712 (8th Cir. 1982). Jennings involved the

Title VII claim of a Postal Service worker who alleged the American

Postal Workers Union, Local 8 "discriminated against her on the basis

of race and sex by not adequately representing her in her grievance

against [the Postal Service]." Id. at 713. The court stated that "[i]t is

clear that Title VII provides a cause of action against labor organizations for unlawful employment practices." Id. at 715. In the court's

view, the fact that the union represented federal employees did not

change the analysis, although the court acknowledged that a labor

organization that represents federal employees could not be sued

under 42 U.S.C. § 2000e-16, which provides for suit against a federal

department or agency. See Jennings, 672 F.2d at 715 & n.6. The court

stressed, however, that in cases where a labor organization is the

defendant, the federal employee is pursuing a claim under the general

provisions of Title VII prohibiting discrimination by labor organizations. See id. The court concluded that although "[§ 2000e-16(c)] is

the exclusive remedy against federal agencies as employers for racial

discrimination, . . . it does not limit the rights of employees against

unions representing federal employees." Id. 

Because the ADA incorporates Title VII's definition of the terms

labor organization, commerce, and industry affecting commerce, our

first task is to determine whether Congress has unambiguously spoken in Title VII as to whether a labor organization that represents federal employees may constitute a labor organization for purposes of

Title VII. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in

 11
which that language is used, and the broader context of the statute as

a whole." Robinson v. Shell Oil, 519 U.S. 337, 341 (1997).

After considering these points of reference, we conclude that Title

VII's definition of labor organization is ambiguous as to whether a

labor organization that represents federal employees may be subject

to liability under Title VII. First, the initial clause of Title VII's definition of the term "labor organization"--[t]he term `labor organization' means a labor organization engaged in an industry affecting

commerce," 42 U.S.C. § 2000e(d)--begs the question of what is the

nature of a labor organization for purposes of Title VII. Second, the

balance of the definition, which uses the term "employer," defined in

§ 2000e(b) as excluding the United States or an agency thereof,

merely provides a nonexclusive list of organizations, agencies,

employee representation committees, groups, associations, or plans

that may constitute a labor organization under Title VII. See West v.

Gibson, 119 S. Ct. 1906, 1910 (1999) (holding that Congress' use of

the word "including" in the phrase "through appropriate remedies,

including reinstatement or hiring of employees with or without back

pay," 42 U.S.C. § 2000e-16(b), made "clear that the authorization [of

remedies] is not limited to the specified remedies there mentioned");

Federal Land Bank v. Bismark Lumber Co., 314 U.S. 95, 100 (1941)

(opining that "the term `including' is not one of all-embracing definition, but connotes simply an illustrative application of the general

principle"); Dong v. Smithsonian Inst., 125 F.3d 877, 880 (D.C. Cir.

1997) (citing Federal Land Bank for proposition that "the word

`includes' normally does not introduce an exhaustive list but merely

sets out examples of some `general principle'"), cert. denied, 118

S. Ct. 2311 (1998); Adams, 927 F.2d at 776 (recognizing that the term

"including" is "perhaps more often than not the introductory term for

an incomplete list of examples"); 2A Norman J. Singer, Sutherland

Stat. Const. § 47.23 (5th ed. 1992) ("When `include' is utilized [in a

statute], it is generally improper to conclude that entities not specifically enumerated are excluded.").

The third circumstance creating ambiguity is that Title VII has a

separate section specifically allowing federal employees to sue the

United States for unlawful employment discrimination, but does not

contain a parallel section addressing labor organizations that represent

federal employees. The fourth circumstance creating ambiguity is that

 12
although § 2000e(e) declares when a labor organization shall be

"deemed" to be engaged in an industry affecting commerce, it does

not purport to define the term "labor organization" itself. Fifth and

finally, the legislative history of Title VII and the ADA is silent

regarding whether a labor organization engaged in an industry affecting commerce and that represents federal employees is subject to their

respective proscriptions.

Because we conclude Title VII's definition of labor organization is

ambiguous as to whether a labor organization that represents federal

employees may be subject to liability under Title VII, we turn to consider the deference this court should afford the interpretation proffered by the EEOC, the agency charged with primary responsibility

for enforcement of Title VII. See Tinsley v. First Union Nat'l Bank,

155 F.3d 435, 441 (4th Cir. 1998). The level of deference that this

court should afford the EEOC's proffered interpretation "will depend

upon the thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and

all those factors which give it power to persuade, if lacking power to

control." Id. (internal quotation marks omitted).

The law is well settled that an agency's interpretation of a statute

with which it has been charged with administering and which has

been reduced to a regulation is to be fully accepted by a court as long

as Congress has not directly spoken as to the precise question at issue

and the interpretation proffered by the agency is a permissible one.

See Chevron, 467 U.S. at 842-43. This level of deference has come

to be known as Chevron deference. We have previously extended

Chevron deference to an agency's interpretation of a statute that had

not been reduced to a formal regulation, but that had been announced

only in Administrative Notices sent to other agencies with which it

worked. See Warren v. North Carolina Dep't of Human Resources,

65 F.3d 385, 391 (4th Cir. 1995). Furthermore, we have previously

extended Chevron deference to an agency's interpretation of statutory

language proffered only in the agency's amicus brief before this

court. See Molinary v. Powell Mountain Coal Co. , 125 F.3d 231, 235-

36 (4th Cir. 1997), cert. denied, 118 S. Ct. 1056 (1998).

Here, the EEOC has proffered its interpretation of the relevant provisions of Title VII in the form of an amicus brief before this court.

 13
But under the circumstances of this appeal, this fact does not make

it unworthy of deference, because the EEOC's position is in no sense

a post hoc rationalization advanced to defend its past action against

attack, and there is simply no reason to suspect that the proffered

interpretation does not reflect the EEOC's fair and considered judgment on the statutory interpretation questions at hand. See Auer v.

Robbins, 519 U.S. 452, 462 (1997) (the fact that the Secretary of

Labor's interpretation of its own regulation was proffered to the

Supreme Court in the form of an amicus brief filed at the request of

the Court did not make it unworthy of deference, because the Secretary's position was in no sense a post hoc rationalization advanced by

an agency seeking to defend past agency action against attack, and

there was simply no reason to suspect that the proffered interpretation

did not reflect the Secretary's fair and considered judgment on the

matter in question). Rather, under the circumstances of this case, we

believe full Chevron deference is appropriate. After reading the

EEOC's brief and listening to its presentation at oral argument, we are

convinced the EEOC thoroughly considered the statutory interpretation issues at hand.5 Furthermore, as we will explain in greater detail

momentarily, we find its reasoning valid. Additionally, the EEOC's

position is consistent with its express agreement in its Compliance

Manual with the Eighth Circuit's holding in Jennings. See EEOC

Compliance Manual, Vol. II, § 605, App. 605-N (issued January 29,

1998). Finally, there is no evidence that the EEOC's proffered interpretation is inconsistent with an earlier or later pronouncement.

Having determined that the EEOC's interpretation is entitled to full

Chevron deference, we must next determine whether the EEOC's

proffered interpretation is "based on a permissible construction of the

statute." Chevron, 467 U.S. at 843. If it is, then we must sustain the

EEOC's interpretation. See Molinary, 125 F.3d at 235. We have no

trouble in concluding that it is. Section 2000e(d) can reasonably be

interpreted to mean that, at a minimum, if a labor organization representing federal employees exists for the purpose, in whole or in part,

of dealing with the United States or an agency thereof concerning

grievances, labor disputes, and the like of the federal employees it

represents and is engaged in an "industry affecting commerce" as that

_________________________________________________________________

5 In this regard, we note that Jones ceded nearly the full amount of his

time to present oral argument to the EEOC.

 14
term is defined in § 2000e(h), then that labor organization is subject

to the proscriptions of Title VII and by proxy the ADA. This interpretation fully comports with Congress' primary purpose in enacting

those statutes of eradicating certain employment discrimination. Such

an interpretation avoids the anomalous result, surely not intended by

Congress, of nonfederal employees being allowed to sue their

employer and labor organizations for violations of Title VII and the

ADA, but federal employees only being allowed to sue their

employer.

There is no dispute in this case that the Defendants represent federal employees and exist for the purpose in whole or in part of dealing

with the Postal Service concerning grievances, labor disputes, and the

like. Furthermore, the Defendants' significant representational activities on behalf of Postal Service employees fully support the conclusion that the Defendants are engaged in activities in commerce. See

42 U.S.C. § 2000e(h). Accordingly, the Defendants constitute labor

organizations for purposes of Title VII liability and by proxy the

ADA.

B. Does the Rehabilitation Act of 1973 Provide the Exclusive

Means of Remedying Disability Discrimination in Federal

Employment?

As an alternative basis of challenging the district court's subject

matter jurisdiction, the Defendants argue that 29 U.S.C. § 791 is the

exclusive means by which a federal employee can remedy disability

discrimination in connection with his or her federal employment. In

§ 791, Congress provided for employment of disabled individuals by

federal departments, agencies, and instrumentalities and the formation

of affirmative action plans in federal employment. In 29 U.S.C.

§ 794a(a)(1), Congress provided that the "remedies, procedures, and

rights set forth in section 717 of the Civil Rights Act of 1964 (42

U.S.C. § 2000e-16) . . . shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for

employment aggrieved by the final disposition of such complaint, or

by the failure to take final action on such complaint." Because

§ 2000e-16(b) sets forth that federal employees alleging employment

discrimination may file civil actions in which "the head of the department, agency, or unit, as appropriate, shall be the defendant," the

 15
Defendants argue that Jones is implicitly prohibited from filing a civil

action against them alleging disability discrimination under the ADA.

In support of their argument, the Defendants rely on the Supreme

Court's decision in Brown v. General Servs. Admin., 425 U.S. 820

(1976). Brown involved an employee of the General Services Administration (GSA), Clarence Brown (Brown), who believed that he was

the victim of race discrimination in failing to be promoted. See id. at

822. Brown sought administrative relief through GSA, but to no avail.

Forty-two days after GSA rendered its final decision denying Brown

administrative relief, Brown filed suit against the GSA in federal district court. See id. at 822-23. Brown alleged claims of race discrimination under § 2000e-16 and 42 U.S.C. § 1981. See Brown, 425 U.S. at

823. The district court dismissed the action for lack of subject matter

jurisdiction. The Supreme Court affirmed on the basis that § 2000e-16

"provides the exclusive judicial remedy for claims of discrimination

in federal employment," and Brown failed to file his civil action

within thirty days of the final decision of GSA as required by

§ 2000e-16(c). Id. at 835.

The Defendants seize upon the language just quoted from Brown

in making their exclusivity argument. See Newbold v. USPS, 614 F.2d

46, 47 (5th Cir. 1980) (opining without further discussion that "the

Brown court's broad language on preemption and exclusivity suggests

that there is no cause of action against individuals under § 1981 . . .").

In this regard, the Defendants miss the mark by a wide margin

because the Supreme Court's holding presupposes that the suit at

issue is only lodged against an agency of the federal government. The

heart of the issue in the case was whether Congress intended to preclude a federal employee from alleging a civil rights violation against

the federal government, with respect to his employment under the

general civil rights statute codified at § 1981, by enacting a statute

specifically providing federal employees with a mechanism for suing

the federal government for employment discrimination by naming the

appropriate department, agency, or unit head. In holding in the affirmative, the Court considered and relied upon the relevant legislative

history of § 2000e-16, the language of § 2000e-16, the sovereign

nature of the United States, and the cannon "that a narrowly tailored

employee compensation scheme pre-empts the more general tort

recovery statutes." Brown, 425 U.S. at 835. Moreover, the fact that a

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federal employee would be able to circumvent the rigorous administrative exhaustion requirements of § 2000e-16 by suing the federal

government under § 1981 motivated the Court's holding. See id. at

832-33. Significantly, in the present appeal, no sovereign immunity

concerns are present, and Jones was not allowed to escape the rigors

of exhausting his administrative remedies. Thus, the Court's rationale

in Brown is simply inapplicable to the present appeal.

Because we hold the district court possessed subject matter jurisdiction over Jones's ADA claims against the Defendants, we vacate

the district court's dismissal of his complaint for lack of subject matter jurisdiction.

III.

Although Jones wins the battle over subject matter jurisdiction, he

ultimately loses the war. The district court should have granted the

Defendants' motion for summary judgment. The law is well settled

that the ADA is not violated when an employer discharges an individual based upon the employee's misconduct, even if the misconduct is

related to a disability. See Martinson v. Kinney Shoe Corp., 104 F.3d

683, 686 n.3 (4th Cir. 1997); Collings v. Longview Fibre Co., 63 F.3d

828, 832-33 (9th Cir. 1995); Despears v. Milwaukee County, 63 F.3d

635, 637 (7th Cir. 1995); Maddox v. University of Tenn., 62 F.3d 843,

846-48 (6th Cir. 1995); cf. Little v. FBI, 1 F.3d 255, 259 (4th Cir.

1993) (finding no liability under the Rehabilitation Act of 1973 when

firing for disability related intoxication on duty). Assuming Butts

made the alleged discriminatory comments at issue to Postal Service

officials and she represented the Defendants in doing so, there is

absolutely no evidence to suggest that the Postal Service discharged

Jones for any reason other than the fact that he threatened the life of

his supervisor. Because the ADA does not require an employer to

ignore such egregious misconduct by one of its employees, even if the

misconduct was caused by the employee's disability, we remand this

case to the district court for entry of judgment in favor of the Defendants.

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IV.

In conclusion, we vacate the district court's dismissal of Jones's

ADA claims against the Defendants and remand for entry of judgment

in their favor.6

VACATED AND REMANDED

_________________________________________________________________

6 Finding no merit to Jones's motion to strike the Defendants' opposition brief to the EEOC's amicus brief, we deny the motion.

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